wise deny the authority of this Court to remove, before judgment, from a State Court, a suit brought therein. It will be equally an invasion of the jurisdiction of the State Court, although less offensive in form, than a removal after judgment has been rendered. Congress can neither regulate the State Courts, or touch them by regulation. Let the Supreme Court declare (for it is a judicial question) what cases are within the exclusive jurisdiction of the federal Courts, by the constitution; and let Congress pass the necessary and proper laws for carrying that power into effect. Although I do not admit that the State Courts would be absolutely bound by such a declaration, yet I have no doubt that the State Courts would acquiesce. It is not for jurisdiction over certain cases that the State Courts contend. It is for independence in the exercise of the jurisdiction that is left to them by the constitution. 2. Does the 25th section of the judiciary act comprehend this case, so that the Court may take jurisdiction thereof? In this case the construction of a statute of the United States is said to have been drawn in question, and the decision in the State Court was against the exemption claimed by the defendant in that Court. This Court has no jurisdiction, if it shall appear that the defendant really had no exemption to set up in the State Court, under a statute of the United States. If the act of Congress has no application, no bearing 1821. Cohens V. Virginia 1821. Cohens on the case, the Court has no jurisdiction." The parties cannot, by making an act of Congress, which does not affect the cause, a part of the record, give Virginia. this Court jurisdiction. This Court have said, that "the sovereignty of a State in the exercise of its legislation, is not to be impaired, unless it be clear that it has transcended its legitimate authority; nor ought any power to be sought, much less to be adjudged, in favour of the United States, unless it be clearly within the reach of their constitutional charter." This Court have also said, that "the sovereign powers vested in the State governments by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States." The State legislatures retain the powers not granted, and not repugnant to the exercise of the powers granted to Congress; and it is not denied, that the legislature of Virginia possessed, previous to the passage of the act of Congress for incorporating the city of Washington, authority to prohibit the sale of lottery tickets in Virginia. That legislature still possesses the power, unless the exercise thereof obstructs some means adopted by Congress for executing their delegated powers. Actions are lawful or criminal, as the laws of the land determine. Whether an action done in Virginia is lawful or criminal, depends on the laws of that a 4 Wheat. Rep. 311. Wheat. Digest, s. 301. 2 Wheat. Rep. 363. 4 Wheat. Rep. 314. b 5 Wheat. Rep. 48. State, unless the action has been authorized or prohibited by Congress in carrying into execution some power granted to them, or the power of some department or officer of the government. The State governments are charged with the police of the States. They, considering certain acts as having a demoralizing tendency, have prohibited them. Shall Congress authorize those very acts to be done within the body of a State ? So entirely is the police of a State to be regulated by its own laws, that if Congress taxed licenses to sell lottery tickets, the payment of the tax would not confer on him who paid it, any authority to sell tickets contrary to the laws of a State. Congress imposed a tax on licenses to sell spirituous liquors by retail; but that did not prevent the State governments from regarding tippling houses as nuisances, and punishing those retailers of spirits who were not licensed tavern keepers. The license is grantable by the State; when granted, the federal government may tax it; but they have no power to grant it. The police belongs to the State government; and the federal government cannot, by the power of taxation, interfere with the police, so as to legalize any act which a State prohibits. It is said that a lottery ticket owes it value to its saleable quality. It is true that the saleability of the ticket by the managers is essential to make the lottery of value to the corporation: But, those sales may be made in Washington. And, if they cannot, must the constitution yield to a lottery? The proprietor of property has not a right every where to 1821. Cohens V. Virginia. 1821. Cobens V. Virginia. dispose of it as he pleases. A man may own poison, He may own money; but he may not, in Virginia, part with it at public gaming. He may come to Washington and purchase a lottery ticket; but if he takes it to Virginia he must not sell it there. A lottery ticket is a chose in action, and not assignable by the common law. The State laws determine whether bonds, bills, notes, &c. are assignable or not. Spirituous liquors are property; but they cannot be sold by retail, without the license of the State government. but he must not sell it as a medicine. He The act of Congress under which this lottery has been authorized, is not an act passed in the execution of any of those specific powers which Congress may exercise over the States. The acts of Congress must be passed in pursuance of the constitution, or they are void. If they have passed a statute authorizing an act to be done in a State which they had no power to authorize in a State, their statute is void. The acts of Congress, to be supreme law in a State, must be passed in execution of some of the powers delegated to Congress, or to some department or officer of the government. Congress may pass all laws necessary and proper to carry a given power into effect: but they must have a given power. Now, what is the given power for the execution of which the sale of lottery tickets in the States is an appropriate means? It is sufficient to show that the act passed is a means of carrying into execution some delegated power. The degree of its necessity or propriety will not be questioned by this Court; but it must obviously tend to the execution or sanction of some enumerated power. If it shall appear on the face of the act, that it is not passed for the purpose of carrying into effect an enumerated power, and that it is passed for some other purpose, the act would not be constitutional. As to the object being a national one for which the money is raised by the lottery in question: the nation has no particular interest in any thing in the City of Washington, except the public property and buildings belonging to the United States. The improvements to be made in the City by the proceeds of this lottery, are not national buildings for the accommodation of the federal government; they are Corporation buildings for the accommodation of the City, the charge of which is to be borne out of the revenues of the City. But, it is not admitted, that if the money was to be applied to building of the capitol, that Congress would have power, for that purpose, to authorize the sale of lottery tickets in a State, contrary to State laws. The nation is interested in the prosperity of every city within the limits of the Union. All may be made to contribute to the public treasury-the City of Washington as well as others. If these improvements in the City of Washington are such as the United States should pay for, let the money be advanced from the treasury, and raised by taxes or by loans in a constitutional manner, and let the taxes imposed on the City of Washington, for the purpose of making these improvements, be declared unconstitutional. They doubtless are so if the people of Washington alone are taxed for purposes truly na 1821. Cohens V. Virginia. |